Legal Status Of Unmarried Cohabitants

Common-Law Marriage
Criminal Liability
Cohabitation-Fornication
Adultery
Sodomy

Common-Law Marriage

A common-law marriage, where recognized, is a legal marriage.  It entitles the husband and wife to the rights and responsibilities of a marriage created by a license and ceremony.  When a common-law marriage ends, relief is given to the spouses according to the state’s divorce laws.

Not all states recognize common-law marriages as valid marriages.  Currently, 11 states and the District of Columbia recognize common-law marriages.  The states include Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah.  New Hampshire recognizes common-law marriages for inheritance purposes only.

Even in states that recognize common-law marriages, some requirements must still be met. Generally these requirements are:

• an express mutual agreement or consent between a man and a woman to be husband and wife;

• a consummation of the agreement by cohabitation as husband and wife; and,

• a reputation in the community as husband and wife.

Some states also require a set number of years of residency before a man and woman can establish a common-law marriage.  Others look more to the circumstances of the cohabitation than to the time of residence.

Maryland does not recognize common-law marriage. However, Maryland will recognize a common-law marriage that was validly entered into in one of the 11 states listed above or the District of Columbia.  Thus, if an unmarried couple moves to Maryland from a state that recognized their union as a common-law marriage, Maryland will also treat their relationship as a valid marriage. 

In Maryland, the marriage between cohabitants before the divorce of either cohabitant is final is an unlawful marriage and is not recognized by the state of Maryland.  The fact that the couple cohabitated prior to this marriage will not validate their marriage.

Criminal Liability

Cohabitation - Fornication

Historically, cohabitation and “fornication,” defined as unlawful sexual intercourse between two unmarried persons, was illegal in most states. Maryland has no laws making fornication or cohabitation illegal, nor does cohabitation constitute the Maryland common-law offense of “lewdness,” or  “unnatural sexual practice.”

Currently, the District of Columbia and eleven states, including Virginia, still have criminal laws penalizing fornication.  A handful of states, including Virginia, have laws making cohabitation a crime.  While these laws do exist, they are rarely enforced.               

Adultery

Adultery laws are important to unmarried cohabitants if one of the partners is still married to another person.  Adultery is a ground for divorce in Maryland. Therefore, the married person who lives with another person could be sued for divorce.  

Additionally, adultery can only be committed with a member of the opposite sex.  That means that a married person who decided to live with his or her same-sex lover could not be sued for adultery under the plain language of the statute.

Many states make adultery a criminal offense. Despite this, prosecutions are rare.  At common law, adultery applied only to sexual intercourse between a married woman and a man other then her husband.  The woman had to be married.  The Maryland law with respect to adultery is now unclear.

Sodomy

Thirteen states make it a crime for an unmarried man and woman to engage in consensual sodomy in private (which is defined as oral or anal sex or both): Alabama, Arizona, Florida, Idaho, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, South Carolina, Utah, and Virginia fall into this category.  A handful of states only prohibit sodomy between individuals of the same sex.

Laws prohibiting consensual sodomy have been used to put defendants in prison for consensual heterosexual sex with another adult. Even when juries have found defendants not guilty of rape, on the rationale that the conduct was consensual, they have found defendants guilty of sodomy because the judge had instructed the jury that, unlike rape, consent is not a defense to the crime of sodomy.

In Maryland, the Court of Appeals held in Schochet v. State,[1] that the law banning “unnatural sexual practices” did not apply to consensual, non-commercial, heterosexual acts between adults in the privacy of the home. At least one trial court has extended this ruling to same-sex couples.[2]  It is unknown how other trial courts or appellate courts would rule on this issue.

Source: This section is drawn from the booklet entitled "Legal Rights of Unmarried Cohabitants in Maryland" produced by and available from The Women's Law Center.  Updated 7/10/01.

Source: Maryland State Law Library (MSLL)                                                                                                Last Legal Update02/06/08 (PLL/M.A.J.)

About this website. The Maryland State Law Library, a court-related agency of the Maryland Judiciary, sponsors this site. The website was developed (1999-2007) as part of an access to justice initiative by the Maryland Legal Assistance Network (MLAN) in collaboration with a number of legal services providers serving low and moderate income Marylanders.  In the absence of file-specific attribution or copyright, the Maryland State Law Library may hold the copyright to parts of this website. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: Maryland's People’s Law Library – www.peoples-law.org. © Maryland State Law Library, 2007.”

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